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OPINIONS OF THE SOLICITOR

MAY 6, 1937

doval, 231 U.S. 28, the Supreme Court of the United States held that these Pueblo Indians were wards of the United States; that they were under the control of the laws of Congress, and that such control extends to the subject oE regulating the liquor traffic with them. The Court said, and its remarks are equally applicable to the native tribes of Alaska:

    "But it is not necessary to dwell specially upon the legal status of this people under either Spanish or Mexican rule, for whether Indian communities within the limits of the United States may be subjected to its guardianship and protection as dependent wards turns upon other considerations. See Pollard v. Hagan, 3 How. 212, 225. Not only does the Constitution expressly authorize Congress to regulate commerce with the Indian tribes, but long continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a State. As was said by this court in United States v. Kagama, 118 U.S. 375, 384: 'The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes.' "
    The power so resting in Congress may be exercised without regard to citizenship and without regard to the locality of the traffic. United States v. Holliday, 3 Wall. 407, 417; Perrin v. United States, 232 U.S. 478, 482; United States v. Sandoval, supra; United States v. Nice, 241 U.S. 591. On the question of citizenship, the court in United States v. Nice, supra, said:
    "Of course, when the Indians are prepared to exercise the privileges and bear the burdens of one sui juris, the tribal relation may be dissolved and the national guardianship brought to an end, but it rests with Congress to determine when and how this shall be done, and whether the emancipation shall at first be complete or only partial. Citizenship is not incompatible with tribal existence or continued guardianship, and so may be conferred with out completely emancipating the Indians or placing them beyond the reach of congressional regulations adopted for their protection."
    And on the question of the locality of the traffic, the court, in United States v. Holliday, supra, a case involving a prosecution for selling spirituous liquors to a tribal Indian in Michigan when not on an Indian reservation, said:
    "The locality of the traffic can have nothing to do with the power. The right to exercise it in reference to any Indian tribe, or any person who is a member of such tribe, is absolute, without reference to the locality of the traffic, or the locality of the tribe, or of a member of the tribe with whom it is carried on. * * * This power residing in Congress, that body is necessarily supreme in its exercise."
    Specifically answering question No. 1, it is my opinion, first, that Congress in virtue of its plenary authority over the Territory of Alaska, may prohibit the sale of liquor to both Indian and white inhabitants of the territory, and, second, entirely apart from Congressional authority over the territory, and independent of any legislation that Congress may enact for inhabitants of the territory other than Indians, it has the power to regulate or prohibit the sale of intoxicating liquors to the Indians or other natives of Alaska.

    2. Could Congress extend the provisions of Section 241, Title 25, United States Code, with respect to sale of liquor to Indians who are wards of the United States to embrace the Indians and Eskimos of Alaska?

    Section 241, Title 25, United States Code, reads:

    "No ardent spirits, ale, beer, wine, or intoxicating liquor or liquors of whatever kind shall be introduced, under any pretense, into the Indian country. Every person who sells, exchanges, gives, barters, or disposes of any ardent spirits, ale, beer, wine, or intoxicating liquors of any kind to any Indian under charge of any Indian superintendent or agent, or introduces or attempts to introduce any ardent spirits, ale, wine, beer, or intoxicating liquor of any kind into the Indian country shall be punished by imprisonment for not more than two years,


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and by fine of not more than $300 for each offense.

    "Any person who shall sell, give away, dispose of, exchange, or barter any malt, spirituous, or vinous liquor including beer, ale, and wine, or any ardent or other intoxicating liquor of any kind whatsoever, or any essence, extract, bitters, preparation, compound, composition, or any article whatsoever, under any name, label, or brand, which produces intoxication, to any Indian a ward of the Government under charge of any Indian superintendent or agent, or any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship, and any person who shall introduce or attempt to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, shall be punished by imprisonment for not less than sixty days, and by a fine of not less than $100 for the first offense and not less than $200 for each offense thereafter: * * *"

    It follows from what has been said in answering question No. 1 that Congress may, if it sees fit so to do, extend the provisions of the foregoing section to the Indians and other natives of Alaska. The language of the section, however, is not well adapted to meet conditions in the Territory of Alaska. The prohibition against the introduction of intoxicating liquors into the "Indian country," has occasioned much difficulty in the United States proper. The meaning of the term "Indian country" has been the subject of numerous decisions. Without attempting to review this entire field, it may be said that under the generally accepted meaning of the term, any area of land is Indian country as long as the Indian title thereto exists, and it ceases to be Indian country when the Indian title is extinguished. Bates v. Clark, 95 U.S. 204; Clairmont v. United States, 225 U.S. 551. Where an Indian reservation has been created in Alaska, such as that for the Metlakahtla Indians (see act of March 3, 1891, 26 Stat. 1101), no difficulty would be presented. But in the absence of such a reservation, and bearing in mind that the natives of Alaska reside in widely separated villages or communities scattered at intervals along the 25,000 miles of coast and on the great rivers in Alaska, the determination of what is Indian country and its extent would present problems difficult of solution and capable of final solution only by a court of competent jurisdiction in particular cases as they arise. Furthermore, that part of section 241 prohibiting the sale of intoxicants to any Indian under the charge of any Indian superintendent or agent is likely to present difficulty. While various officers and employees engaged in educational and health activities for and in behalf of these natives are stationed at various points in Alaska, no superintendencies or agencies such as are maintained for the Indians of the United States proper have been established in Alaska.

    While the form of the proposed legislation is for administrative determination, the legal considerations just mentioned suggest that, if section 241, Title 25, United States Code, be extended to the Territory of Alaska, it should be coupled with language defining as clearly as possible the areas of land to which the term will apply. The necessity for some such definition is emphasized by the recent decision of the Circuit Court of Appeals, Ninth Circuit, in United States v. One Chevrolet Automobile, No. 2658 (not yet reported) holding that certain land purchased for a band of Indians in the State of Nevada under Congressional authority is not Indian country or an Indian reservation within the meaning of Section 241.

    3. Could Congress, for the purpose of the enforcement of such an act, declare all Indians and Eskimos of Alaska to be wards of the United States?

    No community or group of people may be brought within the range of Congressional power by arbitrarily calling them an Indian tribe, or by arbitrarily declaring them to be wards of the United States. United States v. Sandoval, supra. However, a declaration that the Indians and Eskimos of Alaska are wards of the Nation, made in legislation designed to protect them from the evils of the liquor traffic, would not only be consistent with the existing status of these people, but such a declaration would be binding upon the courts under the well-settled principle that whether the protective and regulatory power of Congress shall be extended over an Indian community is a political question with the determination of which the courts have not power to interfere. United States v. Holliday, supra; United States v. Sandoval, supra; Wilbur v. United States, 281 U.S. 206; United States v. Wright, 53 F. (2d) 301.

    4. Could Congress enact legislation providing for the regulation of the liquor traffic in Alaska which would apply to Indians and whites alike?

    This question has been sufficiently discussed under question No. 1, and for the reasons there stated, it must be answered in the affirmative. However, protection of the dependent native tribes of Alaska and the individual members thereof from the liquor traffic is the peculiar responsibility of the Federal Government and that responsibility may be met by Congress without regard to legislation it may enact for control of the traffic among inhabitants of the territory other than the Indians or natives.
 



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    5. If Congress did pass legislation extending the "sale and barter" provisions of Section 241. Title 25, United States Code, to embrace the Indians and Eskimos of Alaska, would such an act be ineffective in view of the decision in the case of Nagle v. United States, 191 Fed. 141, or section 6 of the act of February 8, 1887?

    This question is answered in the negative. The Nagle case involved a prosecution for selling liquor to an Alaskan Indian in violation of Section 142 of the act of March 3, 1899 (30 Stat. 1274), as amended by the act of February 6, 1909 (35 Stat. 600). That section defined the term Indian "to include the aboriginal races inhabiting Alaska when annexed to the United States, and their descendants of the whole or half blood, who have not become citizens of the United States." Under this statute, sales of liquor to Indians who had become citizens of the United States were not forbidden. It became necessary, therefore, in the Nagle case to determine whether the Indian to whom the liquor was sold was or was not a citizen of the United States. Section 6 of the act of February 8, 1887 (24 Stat. 388), provides that "every Indian born within the territorial limits of the United States who has voluntarily taken up within said limits, his residence separate and apart from any tribe of Indians therein and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States and is entitled to all the rights. privileges and immunities of such citizen." The court held that this provision of law was in effect in Alaska, and that it operated to make Indians therein, who are descendants of the aboriginal tribes, born since the annexation of Alaska, but who have voluntarily taken up their residence separate and apart from any tribe and adopted the habits of civilization, citizens ot the United States, and that the sale of liquor to such an Indian did not constitute an offense under section 142 of the act of March 3, 1899, as amended by the act of February 6, 1909, supra.

    Neither section 6 of the act of February 8, 1887, supra, nor the decision in the Nagle case, would affect the enforcement of Section 241, Title 25, United States Code, should that section be extended to embrace the Indians and natives of Alaska. Section 241 does not exclude from its operation Indians who have become citizens of the United States, and it has been repeatedly held that its prohibitions are effective notwithstanding the fact that citizenship may have been conferred upon the Indians. United States v. Nice, supra; Brown v. United States, 8 F (2d) 433, cert. denied 269 U.S. 587; United States v. Sandoval, supra. Section 241, however, prohibits sales only to those Indians "under the charge of any Indian superintendent or agent", or "over whom the Government, through its departments, exercises guardianship." When the relation of guardian and ward ceases to exist by operation of section 6 of the act of February 8, 1887, supra, or otherwise, Section 241 would be without application and to that extent ineffective. But this result would be due to termination of the guardianship relation and not to the conferring of citizenship on the individual.

    6. If Congress did extend the prohibition against the sale of liquor to the Indians and natives of Alaska which is now embodied in Section 241, Title 25, United States Code, would it apply to the Metlakahtla Indians who emigrated from British Columbia, Canada, and settled on Annette Island under authority of the act of March 3, 1891 (26 Stat. 1101)?

    While the answer to this question may depend upon the language of the legislation as finally enacted by Congress, it may be said that the Metlakahtlans, irrespective of their foreign birth, are now Indians or natives of Alaska so that the extension of Section 241 to include all such Indians or natives doubtless would embrace them. As pointed out in Alaska Pacific Fisheries v. United States, 248 U.S. 78, the legislation which Congress has enacted for the benefit and protection of this particular group of natives has made the fact of their foreign birth immaterial. And in Territory of Alaska v. Annette Island Packing Co., 289 Fed. 671, wherein it was contended that "the Indians on Annette Island are not and never have been, since their settlement there, a 'tribe of Indians'; that their descendants by virtue of their birth on the island became American citizens; that the Alaskan natives who joined them were likewise not an Indian tribe, and that the Island never became an Indian reservation," the court said:

" * * * As we view the questions necessary here to be decided, we think the fact that the Indians are not tribal, and the fact, if it be a fact, that the majority of the Indians on the island are citizens of the United States by virtue of their having been born on the soil of the United States, are immaterial, for although such Indians may be citizens, they are still subject to the care and protection of the United States. Winton v. Amos, 255 U.S. 391, 41 Sup. Ct. 342, 65 L. Ed. 684. The inhabitants of the Island, being Indians, stand in the same relation to the United States as do Indians on other reservations. Nor is it material that the Metlakahtla Indians were British subjects before their immigration to the United States. Congress has made that fact immaterial here. Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 Sup. Ct. 40, 63 L. Ed. 138. The government has always recognized these In-


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dians as its wards. The act of March 3, 1891, declares that Annette Island be 'set apart as a reservation' for their use. * * * There can be no question therefore but that the Metlakahtla Indians are wards of the government. They are dwelling on the island at the sufferance of the government and on land which be longs to the United States. The purposes sought to be accomplished by the government are the same as its purposes for all Indian reservations, to encourage, assist, and protect the Indians in their efforts to acquire habits of industry, become self-supporting, and advance in the ways of civilized life."

    These decisions make it plain that legislation prohibiting the sale of intoxicants to the Indians and natives of Alaska would bring within its protection the Indians of Annette Island. However, any possible question about the matter may, and should be obviated, by the use of language which will expressly include these particular Indians.

    7. Could this group of Indians be brought under such an act by Congress declaring them to be "wards of the United States"?

    The Metlakahtla Indians are now wards of the United States. Territory of Alaska v. Annette Island Packing Co., supra. Accordingly, no such declaration is necessary. However, such a declaration would do not harm and doubtless would be regarded as a conclusive determination of their status by the courts. United States v. Holliday; United States v. Sandoval; United States v. Wright, supra.

    8. Would the acceptance of the provisions of the act of June 18, 1934 (48 Stat. 984) (Indian Reorganization Act), by a particular tribe or group of Alaskan Indians or Eskimos serve to bring them under the protection of Section 241, Title 25, United States Code, prohibiting the sale of intoxicants to Indians who are wards of the United States Government?

    The foregoing question, which is stated in the form submitted by the Commissioner of Indian Affairs, is not clearly understood. Sections 9, 10, 11, 12 and 16 of the Indian Reorganization Act of June 18, 1934, supra, were extended to the Territory of Alaska by section 13 of that act. The act of May 1, 1936, supra, extended to the Territory of Alaska sections 1, 5, 7, 8, 15, 17 and 19 of the Indian Reorganization Act. None of these sections, nor anything else contained in the act of May 1, 1936, makes a vote of the Indians necessary to make said sections effective. By the act of May 1, 1936, certain actions, such as organization, incorporation and the creation of reservations do require a favorable vote by the Indians to be effective. In this situation, I assume that the thought the Commissioner has in mind is that extension of the sections mentioned to Alaska, coupled with a favorable vote by the Indians ratifying the adoption of a constitution and bylaws, or the issuance of a corporate
charter, or authorizing the creation of a reservation, would operate to bring the particular tribe or group of Indians within the provisions of Section 241, Title 25, United States Code, without further legislation on the subject.

    Inasmuch as neither the Indian Reorganization Act nor the act of May 1, 1936, deals in any way with the Indian liquor laws, either by specific mention of Section 241, Title 25, United States Code, or otherwise, the suggestion of the Commissioner necessarily assumes that Section 241 is now and has been in the past applicable to the Territory of Alaska; that the natives of Alaska have been deprived of its protection heretofore either because they were not regarded as wards of the United States or because they did not occupy lands which could properly be classified as Indian country, and that the act of May 1, 1936, removes these obstacles to enforcement of the section in favor of the Alaskan natives by definitely recognizing them as wards of the Nation and by providing for the creation of reservations for them, which reservations would become Indian country within the accepted meaning of that term.

    No reported decision has been found dealing with the application of Section 241, Title 25, United States Code, to the Territory of Alaska. As hereinbefore pointed out, Alaska is an organized territory. Section 3 of the Organic Act of August 24, 1912 (37 Stat. 512, 48 U.S.C., Sec. 23) provides that the "Constitution of the United States, and all the laws thereof which are not locally inapplicable, shall have the same force and effect within the said Territory as elsewhere in the United States." In virtue of a provision similar to this (Section 1891, Revised Statutes), the court in the case of Nagle v. United States, supra, held that section 6 of the act of February 8, 1887 (24 Stat. 388), conferring citizenship on Indians who had abandoned their tribal relations and adopted the habits and customs of civilized life, was in force in the Territory of Alaska. Like reasoning would support the view that Section 241, Title 25, United States Code, is in force in Alaska, were it not for the fact that Congress has seen fit to deal expressly with the subject of liquor control among the natives of Alaska. This it did by section 142 of the act of March 3, 1899, as amended by the act of February 6, 1909, which reads:

    "That if any person shall, without the authority of the United States, or some authorized officer thereof, sell, barter, or give to any Indian or half-breed who lives and associates with Indians, any spirituous, malt, or vinous liquor or intoxicating extracts, such person


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shall be fined not less than one hundred nor more than five hundred dollars or be imprisoned in the penitentiary for a term not to exceed two years.

    "That the term 'Indian' in this Act shall be construed to include the aboriginal races inhabiting Alaska when annexed to the United States, and their descendants of the whole or half blood, who have not become citizens of the United States."

    At the time of the foregoing enactment, the provisions of law incorporated in Section 241, Title 25, United States Code, were in full force and effect. It is evident, therefore, that Congress did not regard those provisions as having application to the natives of Alaska; otherwise, the enactment of section 142 above would not have been necessary. That the territorial legislature entertained a like view is shown by the fact that it has also seen fit to deal specially with the subject of liquor control among the Alaska natives (see section 4963, Compiled Laws of Alaska, 1933). In any event, the enactment by Congress of a special liquor law for the natives of Alaska makes the general enactment found in Section 241 locally inapplicable so that extension of that section to the Alaskan natives cannot be justified under the doctrine of the Nagle case. See in this connection Abbate v. United States, 270 Fed. 735, and Stanworth v. United States, 45 F. (2d) 158, holding that the local Bone Dry Act of Alaska was not superseded or displaced by the National Prohibition Act. In these circumstances, prosecutions for liquor sales to the Indians or natives of Alaska based on Section 241, Title 25, United States Code, doubtless would fail of conviction.

    Question No. 8 is accordingly answered in the negative.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


 Approved: May 6, 1937.
OSCAR L. CHAPMAN, Assistant Secretary.

SALE OF RAILROAD RIGHT-OF-WAY--
QUESTION OF TITLE IN SEMINOLE
NATION, OKLAHOMA


May 15, 1937.


 Memorandum to the Assistant Commissioner of Indian Affairs:

    I am returning for further consideration your letter of May 3 recommending that the fee title to a tract of land embraced in a right of way grant made to the Choctaw, Oklahoma and Gulf Railroad Company be sold to that company under section 14 of the act of April 26, 1906 (34 Stat. 137-142), which reads:

    "That the lands in the Choctaw, Chickasaw, Cherokee, Creek, and Seminole Nations reserved from allotment or sale under any act of Congress for the use or benefit of any person, corporation, or organization shall be conveyed to the person, corporation, or organization entitled thereto: Provided, That if any tract or parcel thus reserved shall before conveyance thereof be abandoned for the use for which it was reserved by the party in whose interest the reservation was made, such tract or parcel shall revert to the tribe and be disposed of as other surplus lands thereof: Provided further, That this section shall not apply to land reserved from allotment because of the right of any railroad or railway company therein in the nature of an easement for right of way, depot, station grounds, water stations, stock yards, or other uses connected with the maintenance and operation of such company's railroad, title to which tracts may be acquired by the railroad or railway company under rules and regulations to be prescribed by the Secretary of the Interior at a valuation to be determined by him; but if any such company shall fail to make payment within the time prescribed by the regulations or shall cease to use such land for the purpose for which it was reserved, title thereto shall thereupon vest in the owner of the legal subdivision of which the land so abandoned is a part, except lands within a municipality the title to which, upon abandonment, shall vest in such municipality."
    The sale is to be made on behalf of the Seminole Nation of Indians as owner of the fee subject to the right of way. It is by no means clear that the title is in the Seminole Nation. The right of way appears to have been acquired by the railroad company pursuant to the act of February 18, 1888 (25 Stat. 35). That act, as interpreted by the Supreme Court in the recent case of Noble v. Oklahoma City, 297 U.S. 481, conferred on the railroad company a franchise or right to acquire a right of way. According to your letter the railroad company exercised its right and actually constructed the road and is operating it at the present time. If these are the facts, the opinions of the Solicitor dated January 25, 1935, and April 23, 1936 (55 I.D. 451, 456), are without application. There the railroad company failed to pay damages or to construct the road so that no easement was acquired and the title of the tribe was never in fact divested. The Solicitor pointed out, however, that if the rail-
 



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road company had in fact acquired an easement by compliance with the conditions of the governing statute and had failed to convert the easement into a fee in the manner provided for in section 14 above, the title upon abandonment would under that section vest in the owner of the legal subdivision of which the land so abandoned is a part.

    Section 14 of the act of 1906 provides that title may be acquired by railroad companies under rules and regulations prescribed by the Secretary of the Interior at a valuation to be determined by him, with the declaration that if any such company "shall fail to make payment within the time prescribed by the regulations or shall cease to use such land for the purpose for which it was reserved title thereto shall thereupon vest in the owner of the legal subdivision of which the land so abandoned is a part." The regulations which were approved by the Secretary of the Interior on June 12, 1908 designated November 1, 1908, as the date prior to which any railroad or railway company holding title in the nature of an easement might acquire title to such lands. This date appears to have been twice extended. The first extension fixed the date at March 1, 1909. The second and final extension fixed the date at June 30, 1909. It is to be observed that at the time these extensions were made the date previously fixed had not arrived.

    The basis of the claim that the Seminole Nation now has title to the land and that such title may now be sold to the railroad company under section 14 is neither set forth nor discussed in your letter. The theory is, I assume, that title does not actually pass to the legal subdivision owner until abandonment of the easement by the railroad company; that until that time such title remains in the tribe; and that as the date prior to which the railroad companies might purchase such title was fixed by regulation, it is competent for the Secretary to amend his regulations by again extending the date within which any railroad company may purchase the fee.

    In my opinion, the Secretary of the Interior may not at this late date extend the time. His regulations in that respect were in execution of a specific statutory declaration and had the force and effect of law. Before the date fixed arrived, it might be extended as was done in the instances mentioned above. After the date fixed had passed, however, an attempt to change it and substitute some other day in the future would amount not to an extension but to the creation of an entirely new period. Such action not only is not authorized by anything contained in section 14, but it would conflict with the declaration in that section that upon failure of the railroad company "to make payment within the time prescribed by the regulations or shall cease to use such land for the purpose for which it was reserved, title thereto shall thereupon vest in the owner of the legal subdivision of which the land so abandoned is a part." If the argument that title does not pass to the legal subdivision owner until there has been an actual abandonment by the railroad of its easement is sound, the word "or" would have to be read as "and". The legislative history of the enactment forbids this. The original bill used the word "and". An amendment changed the word to "or". See Congressional Record, volume 40, part 2, page 3204. This action by Congress is a persuasive if not conclusive indication of its intent that title to the sentient estate should pass from the tribe to the subdivision owner immediately upon the failure of the railroad company to purchase within the time prescribed by the Secretary's regulations. Unless the railroad company had failed to purchase the fee within the time prescribed, more cessation of use by the railroad company would not pass title to the subdivision owner. Cessation of use is essential to extinguish the railroad company's right of exclusive possession under its easement. This indicates that non-purchase by the railroad company is the primary condition for shifting the title to the subdivision owner so that the words "abandoned" and "abandonment" appear to have been used not for the purpose of postponing the vesting in the legal subdivision owner of title to the servient estate but to preserve the railroad company's right of exclusive possession in its easement until abandonment, whereupon the title of the legal subdivision owner would become complete or absolute.

    The foregoing view is in accord with the policy reflected by the statute. Section 14 is part of a lengthy statute the object of which was to provide for a final disposition of the affairs of the Five Civilized Tribes in the Indian Territory. It was one of a series of measures designed to dissolve the tribal relations and abolish tribal land tenures. As pointed out in United States v. Hays, 20 F. (2d) 873 the main purposes to be accomplished by these measures "were to dispose of all of the lands of the tribe, by allotment or sale; divide all tribal funds among the members; and dissolve the tribal relations by March 4, 1906." Construed as it should be in the light of this Congressional purpose (see Levindale Lead Company v. Coleman, 241 U.S. 432, 437; United States v. Hays, supra), section 14 seems plainly to have been designed to divest the tribal title to all lands included in valid and subsisting railroad rights of way either by sale to the railroad companies or by transfer of the title in default of such sale to the legal subdivision owners or the municipality. This view, which is fortified by the absence of any provision for retention of title in the tribe, conflicts in no way with the opinions of January 25, 1935, and April 23, 1936, supra. In the case there considered no valid easement had ever been acquired and the tribal title
 



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had never in fact been divested. Such lands not having been included in individual allotments were made subject to disposal by another section of the act of 1906 (section 16).

    Assuming that the statute might be construed as having the effect of leaving ownership in the tribe until there was an actual abandonment by the railroad company of its easement, such ownership, in the absence of a sale to the railroad company, would terminate and vest, immediately upon abandonment of the easement, in the legal subdivision owner or the municipality. The limited time fixed for sale to the railroad company having long since expired, such a sale is not now authorized.

                                                                                                                                        FREDERIC L. KIRGIS

Acting Solicitor.
BLACKFEET TRIBE--POWER OVER LEASES


May 22, 1937.


 Memorandum to the Commissioner of Indian Affairs:

    The attached letter relative to the sale of oil leases on Blackfeet tribal lands is returned for further consideration.

    The letter as drafted apparently assumes that the execution of oil leases is primarily a responsibility of the Interior Department. As a matter of law this is no longer true, in view of the provisions of the Blackfeet Constitution and Charter approved by the Secretary.

    Under Article VI, section 1 (e) of the Blackfeet Constitution, the Blackfeet Tribal Business Council is authorized to "manage all economic affairs and enterprises of the Blackfeet Reservation, including all oil leases on tribal lands and the disposition of all oil royalties from tribal lands, in accordance with the terms of a charter to be issued to the Blackfeet Tribe by the Secretary of the Interior." This authority is confirmed by section 5 of the tribal charter.

    In construing similar language in a statute it was said in the case of White Bear v. Barth (61 Mont. 322, 203 Pac. 517):

    "From the language of this statute it appears reasonably certain that it was the legislative purpose to confer primary authority upon the Indians, and that the determination of the council should be conclusive upon the government, at least in the absence of any evidence of fraud or undue influence."
    It is clear that under the provisions of the Blackfeet Constitution and Charter, the council has the right to make leases on its own initiative. Such leases, at the present time, require departmental approval to be valid, but it seems to me that a fair application of the departmental veto power requires a specific objection and does not warrant what amounts to a blanket veto, in advance of all leases that may be made by the tribe until further notice. This is important not only as a matter of fair legal interpretation of the veto power reserved to the Department but equally as a matter of administrative policy. The reserved veto power over tribal leases is temporary. It may be terminated at any time by the Secretary, or after 10 years, by the tribe itself, in the manner set forth in Article VI of the tribe's character of incorporation. The veto power should therefore be utilized primarily as an educational device to check up on mistakes, honest or dishonest, that may be made by the tribal officials in the exercise of their new duties. To accomplish this purpose the veto power must be exercised in a way to commend the respect of the tribe. The attached letter is obviously inadequate from this point of view.

    So far as I can determine from the attached file, most of which relates to the terms of the proposed leases, the only substantial reason for vetoing any of these leases is that their issuance would cut the price now received for oil by persons holding interspersed and adjoining lands, particularly white-owned lands. I do not think that this is a sound reason for a wholesale veto of the proposed tribal leases. If there are any better reasons for the exercise of the departmental veto power over any of the proposed tribal leases, I think that they should be set forth specifically and in the most persuasive manner possible.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.


 Approved:

Assistant Secretary.

IRA--ELECTION


May 24, 1937.


 Memorandum to the Commissioner of Indian Affairs:

    Your office has informally requested a determination as to the validity of the election on the Indian Reorganization Act held on the Cornplanter Reservation in Pennsylvania on June 15,
 



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1935. At this election 40 votes were cast, of which 23 votes were of residents of the Cornplanter Reservation, and 17 were votes cast by non-resident persons designated as "Heirs of Cornplanter" who were from the Onondaga Cattaraugus and Allegheny Reservations in New York. The name and place of residence of the voters appear on the list of persons voting kept by the election official. Of the votes cast, 23 were in favor of the Indian Reorganization Act and 17 opposed. As a result of this election the Indians of the Cornplanter Reservation were the only Seneca Indians in the New York and Pennsylvania region who ratified the Reorganization Act.

    Under the Solicitor's opinion of December 13, 1934, defining the persons entitled to vote in an election under section 18 of the Indian Reorganization Act, the non-resident Indians even though they may have been "heirs of Cornplanter" and possibly possessing an interest in the reservation, were not entitled to vote. This opinion determines that an Indian must both reside on the reservation and have a legal interest in the affairs of the reservation in order to be entitled to vote in such an election.

    When illegal votes have been cast at a general election, the general rule applied to determine whether the election can, nevertheless, be considered valid is the following: If it is not known for which candidate or for which issue the illegal votes were cast, the election is, nevertheless valid if the successful candidate or issue would have received a majority of the votes if the illegal votes were subtracted from the total number of votes received by the successful candidate or issue. Otherwise, the election will be set aside by the proper authority. Young v. Hays 197 Ky. 185; 246 S.W. 454; 19 R.C.L. 1148. However, if it is known who the illegal voters were, they may be questioned as to how they voted, although a legal voter cannot be compelled to testify as to his vote. Muncy v. Duff 194 Ky. 303; 239 S.W. 49; 19 R.C.L. 1150, 1151. The illegal votes may then be eliminated from the side for which they were cast, and the result of the election would then depend upon which side received the majority of legal votes.

    According to the rules stated, the Cornplanter election was subject to annulment, since the subtraction of the 17 illegal votes from the 23 favorable votes would not leave a majority in favor of the Reorganization Act. The Secretary of the Interior, by virtue of his power to supervise elections under section 18, had authority to cancel the election or to investigate the illegal votes and through their elimination to determine the outcome of the election on the basis of the legal votes. This latter alternative is still available, if it is found wise to employ it at this date. To make such determination, a formal investigation would have to be undertaken in which the sworn testimony of the 17 non-resident voters should be obtained as to the way in which they voted on the Reorganization Act. However, the alternative of cancelling the election is no longer suitable if a new election cannot be held by reason of the fact that the period for holding elections on the Indian Reorganization Act, extended by the amendatory act of June 15, 1935 to June 18, 1936, has elapsed.

    In the Solicitor's opinion of December 13, 1935, at page 4, it is stated that if for any reason (including the reason that an election is improper because of irregularities in balloting) it should appear that the Indians of the reservation ought to have another opportunity to exclude themselves from the act, the Secretary of the Interior would he justified in calling a new election "within the period prescribed by section 18." The requirement that a new election be within the period prescribed was reiterated in the Solicitor's memorandum of September 13, 1935, to Commissioner Collier, and his memorandum of September 17, 1935, to the Secretary of the Interior, on the subject of the discretion of the Secretary to call new elections in cases where less than the prescribed number of Indians participated in the election. While these rulings were not made in consideration of the exact case now presented, the language is broad enough, to cover this case. Unless there are further facts which justify a change in these rulings, no further election on the Reorganization Act can now be called by the Secretary of the Interior without statutory authority.

                                                                                                                                            FREDERIC L. KIRGIS.

Acting Solicitor.
CHARTERING OF SUBORDINATE ORGANIZATIONS


May 24, 1937.


 Memorandum for the Commissioner of Indian Affairs:

    I am returning for further consideration a proposed letter to Credit Agent J. E. White, concerning the chartering of subordinate corporations by the Shoshone-Bannock Tribes of the Fort Hall Reservation in Idaho.

    The statements made in the final paragraph with respect to the liability of members of an unincorporated cooperative association are not in accord with the law. Under existing law members of an unincorporated cooperative association are individually liable either for all debts of the association or those debts which have been incurred with their
 



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OPINIONS OF THE SOLICITOR

MAY 24, 1937

authorization. Unincorporated cooperative associations may be of two kinds and these kinds are variously described by authorities in this field. The first type is the cooperative association organized for the pecuniary profit of its members, or, as it is sometimes said, for business purposes, and the second type is referred to as a non-profit cooperative, or a cooperative not organized for business purposes, or one that operates merely as an agency for its members. The liability of members of these two kinds of associations is slightly different. Members of the cooperative association organized for business purposes are liable for the debts of the association in the same way as partners are liable for the debts of the partnership. That is, the members are jointly and severally liable for all the debts of the association. The members of cooperative associations not organized for business purposes are individually liable for the debts of the association if they authorized or ratified the undertaking which produced the debt. In either case, a member who has been held responsible for the entire debt may obtain contribution from the other members of the association. This can be described by the statement that as between the members of an unincorporated association each member is bound to pay only his numerical proportion of the indebtedness of the association. These principles of liability are set forth in various legal references. Wrightington Unincorporated Associations, 1916, Sets. 29, 31, 54 and 64; 5 C.J. 1340, et seq; Legal Phases of Cooperative Associations, Bulletin No. 1106, Department of Agriculture, at 115, 116.

    It is likely that the livestock or other cooperative associations which are the subject of the proposed letter would be held to be cooperative associations organized for business purposes, but even if they were not, full liability for the association's debts, under the foregoing rules. would attach to the officers of the association and all the members who took active part in running the association. The laws of the State of Idaho make no exceptions to this principle. In fact, the Idaho laws contemplate incorporation of all cooperative associations and treat all unincorporated associations as associations organized for profit. Chapter 22, Section 2001 of the Idaho Code of 1932, provides for the incorporation of cooperative marketing associations. Chapter 29, Section 1002, provides that every cooperative association not organized for profit shall be organized and governed under the laws applicable to private corporations. Chapter 29, Section 101, defines "unincorporated associations" as any unincorporated group united to carry on business for profit. Such associations would therefore fall into the class of partnerships, the members of which are by the Idaho code (Chapter 52, Sec. 315), made jointly and severally liable for the debts of the partnership.

    In view of these considerations the final paragraph of the proposed letter must be revised.

    It is also necessary that the statements contained in the proposed letter with respect to the chartering of subordinate corporations be qualified and revised. It is true, I think, that under the express terms of the corporate charter the tribe may charter a subordinate organization as a corporation under tribal law and may, in effect, provide that relations between individual members of the tribe and the corporation shall be governed by tribal ordinances. This conclusion is in line with the following authorities on the powers of an Indian tribe which hold that "in its capacity as a sovereign, and in the exercise of local self government, it may exercise powers similar to those exercised by any State or nation in regulating the use and disposition of private property, save insofar as it is restricted by specific statutes of Congress." Solicitor's Opinion, Powers of Indian Tribes M.27781; Cuthbert Pound, "Nationals Without a Nation," 22 Columbia Law Review, 97, 101-102, W. G. Rice, Jr., "Position of the American Indian in the Law of the United States," 16 Jour. Camp. Leg. (3d series), Part 1, Page 78 (1934); Crabtree v. Madden, 54 Fed. 426; In Re Sah Quah, 31 Fed. 327; Jones v. Laney, 2 Tex. 342; Myers v. Mathis, 2 Ind. T. 3, 46 S. W. 178; John H. Hamilton v. United States, 42Ct. Cls. 282.

    There is, however, no assurance that relations between such a subordinate organization and non members of the tribe would be governed by the terms of such charters and ordinances. Thus, it might happen that individual Indians, members of such a corporation, might be sued in State courts by third parties claiming to have been injured by some act of the organization. In the absence of any decisions on this issue, I am not prepared to say with any certainty how the issue would be decided by the courts.

    If the Indians concerned, after weighing the uncertainties and possible difficulties involved in this course of action, and after examining the advantages of State incorporation, come to the conclusion that incorporation under a charter issued by the tribe is preferable, there are certain steps that might be taken in advance of litigation to establish the legality of the subordinate corporation. For one thing, I can see no objection to having the Department treat such incorporation as valid in any dealings it may have with such an organization, requiring a corporate seal on loan agreements and otherwise recognizing the corporate existence of the organization.

    In the second place, it may be possible to secure from the State Attorney General or the Secretary
 



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DEPARTMENT OF THE INTERIOR

MAY 24, 1937

of State of Idaho, a decision on the question of whether an association incorporated under a tribal ordinance is a lawful corporation within the meaning of the State statutes. Sections 29-501 and 29-502 of the Idaho Code, in common with most State Codes, provide that a corporation not chartered by the State of Idaho, doing business within that State, shall present evidence of its incorporation and name a statutory agent. The evidence of incorporation is to be certified by the Secretary of State of Idaho. Non-profit corporations are exempted from making further reports and paying license fees. The submission of a charter to the Secretary of State of Idaho ,would very likely settle the question of State recognition.

                                                                                                                                            FREDERIC L. KIRGIS.

Acting Solicitor.
TRIBAL LAND--LEASES


May 25, 1937.


 Memorandum for the Assistant Commissioner of Indian Affairs:

    There is returned herewith for further consideration your letter of March 15, 1937 submitted for departmental approval relative to granting grazing privileges on ceded lands within the boundaries of the Uintah and Ouray Reservation.

    Your letter apparently concurs in the view expressed by the superintendent of the reservation "that these ceded lands still belong to the Indians of this reservation, although they have been under the jurisdiction of the General Land Office since they were opened by Presidential proclamation for sale and entry." If this is the case the disposition of such lands is governed by the constitution of the Ute Tribe of the Uintah and Ouray Reservation, adopted by the tribe on December 19, 1936, and approved by the Secretary of the Interior on January 19, 1937. Article VIII section 3, of that constitution provides as follows:

    "Section 3. Leasing of tribal lands. Tribal lands may be leased by the Tribal Business Committee, with the approval of the Secretary of the Interior, for such periods of time as are permitted by law.

    "In the leasing of tribal lands, preference shall be given, first, to Indian cooperative associations and secondly, to individual Indians who are members of the Ute Indian Tribe of the Uintah and Ouray Reservation.

    "No lease of tribal lands to a non member shall be made by the Tribal Business Committee unless it shall appear that no Indian cooperative association or individual member of the Tribe is able and willing to use the land and to pay a reasonable fee for such use.

    "Grazing permits covering tribal land may be issued by the Tribal Business Committee, with the approval of the Secretary of the Interior, in the same manner and upon the same terms as leased."

    If the lands involved still belong to the Indians, or have been restored to the Indians under section 3 of the Indian Reorganization Act, any lease or permit would have to be issued by the Tribal Business Committee, with the approval of the Secretary of the Interior and would have to conform to the procedures specified in the foregoing provisions with respect to preference rights. It is suggested that any revised instructions issued in this matter be accompanied by a memorandum setting forth the facts with respect to the title to these lands with citations to the applicable treaties, agreements or acts of Congress.

                                                                                                                                                FREDERIC L. KIRGIS,

Acting Solicitor.
LAND AND WATER RIGHT EXCHANGE
CALIFORNIA

M-29232                                                                                                                                  June 2, 1937.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    You have presented for my consideration and opinion several questions raised by the Office of Indian Affairs in connection with the proposed land and water rights exchanges between the Government and the City of Los Angeles, California, authorized to be made by the act of April 20, 1937, Public No. 43. 75th Congress. These questions are substantially as follows:

    1. Under the act may lands alone be exchanged? If so, in lieu of exchanging water rights as authorized by the act, can the Government and the city contract with respect to the water rights, providing thereby that the city shall furnish water to the Indians concerned and that the United States shall, for the benefit of the city, forbear to use the water rights retained by it?
 



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OPINIONS OF THE SOLICITOR

JUNE 2, 1937

    2. Are any of the lands involved in the exchange, other than allotted lands, tribal lands within the meaning of Sec. 3 of the act?

I

    In answer to the first question, it is my opinion that the act permits the exchange of lands alone.

    With respect to the authority so to exchange, the act provides as follows:

    "That the Secretary of the Interior be, and he is hereby, authorized, in his discretion, to accept title on behalf of the United States to lands and water rights now owned and held by the city of Los Angeles in the counties of Inyo and Mono State of California, if, in his judgment, the interests of the Indians in said counties will be benefited thereby; and in consideration therefor the said Secretary may issue a patent or patents to the said city of Los Angeles for lands, water rights, and buildings now held by the United States for the benefit of the Indians, provided that the lands, water rights, and buildings covered by the patent or patents shall not exceed in value the lands and water rights conveyed by the said city of Los Angeles to the United States."
The authority is to accept title to "lands and water rights" and in exchange therefor to patent "lands, water rights, and buildings." But the word "and" as used here is often construed in the coordinate sense. Hensel, Bruckmann & Lorbacher v. United States, 126 Fed. 576; Robson v. Cantwell, et al., 141 SE. 180 (S. C.). The present case is one where such a construction appears proper for there is no indication that Congress intended to permit exchanges only of lands together with water rights. The only limitation on the broad discretionary authority given to the Secretary to effect exchanges is that there shall be an equivalence of values. This, of course, can be accomplished without construing the act as requiring an exchange of both lands and water rights.

    There is immediately suggested a question of the validity of the severance of water rights from lands. That this can be accomplished by conveyance under the water law of California seems to be true, but this question need not be determined now. It is rather a question of the sufficiency of title to be considered whenever in a particular exchange such a severance is contemplated.

    It is my opinion, in answer to the second question under part I of this opinion, that there is no authority in the Secretary to contract with the City of Los Angeles for the use and delivery of water.

    The act authorizes the Secretary "to accept title * * * to * * * water rights" and in consideration therefor to issue "a patent or patents * * * for lands, water rights, and buildings." There is no other authority in the act to deal with water rights. In the absence of such other authority, whether the proposed agreement is authorized by the act turns, therefore, on whether by the proposed agreement title to the water rights will pass to the Government. Obviously, an agreement by the city to furnish water contemplates the retention of title by the city and the absence of title thereto in the United States. This is not contemplated by the act.

    The suggestion of the contract in lieu of a transfer of title is made because a conveyance of water rights by the city can be made only after securing the approval of two-thirds of the city voters at an election. This procedure, it is believed, will unduly delay consummation of the exchanges. But the desired result of immediate use of the water rights can be accomplished despite this. Thus, a contract can be entered into relating to the use of the water rights pending the conveyance thereof, the contract to provide that a conveyance shall be made in the manner authorized by law within some agreed time, and that the contract shall terminate on the failure so to convey. Such a contract can be made, in my opinion, for it is properly but an integral step in the transfer of title within the purview of the act.

II

    In order to answer the question as to whether the land involved is tribal land, it is necessary to consider each of four kinds of land. These are as follows:

    1. Lands of the public domain withheld from entry by a departmental order dated March 21, 1913.

    2. Lands of the public domain set aside by an Executive order dated March 11, 1912.

    3. Lands of the public domain set aside by an Executive order dated September 7, 1912.

    4. Lands purchased out of funds made available by several appropriation acts, beginning with the act of August 1, 1914 (38 Stat. 589).

    In my opinion, the lands described in No. 1 above are not tribal lands, and moreover, I doubt that these are lands held for the benefit of Indians within the meaning of the act. The latter being true, they are not now exchangeable.

    These lands were prior to February 3, 1911, in a National forest. In 1913 a departmental order was pending to have them restored to entry under the public land laws. This order was stayed by a departmental letter approved by the Assistant Secretary on March 21, 1913. By his approval, the Assistant Secretary ordered that the order of restoration "be withheld until a further report can be submitted to
 



762

DEPARTMENT OF THE INTERIOR

JUNE 2, 1937

the Department with the view to having an additional Executive order issued withdrawing such lands as may be available and needed for the Indians." The effect of this letter was to prevent entry, but by its terms it did not purport to set the lands apart even temporarily for the benefit of Indians. No Executive order was ever issued to accomplish this, and since 1919 further action has been impossible because of the prohibition on the withdrawal of public lands for Indian reservations provided by the act of June 30, 1919 (41 Stat. 34). In these circumstances, it is my opinion that the lands are not now held for the benefit of Indians within the meaning of the act being considered.

    In considering whether the other three classes of lands are tribal, there is encountered at the outset the problem as to whether the lands set apart by Executive order were properly so set apart. By the act of April 8, 1864 (13 Stat. 39), the President was authorized to set apart as Indian reservations not to exceed four tracts of land in California. The four reservations so created are now known as the Hoopa Valley Reservation, the Mission Reservations (several non-contiguous areas), the Tule River Reservation, and the Round Valley Reservation. Numerous Executive order reservations in excess of these four in California have, however, been created. The authority relied on evidently has been the general authority in the Executive so to deal with the public domain. 17 Atty. Gen. 258; 34 Atty. Gen. 181. See Executive Orders, Indian Reservations, vol 1, pp. 38 to 65; vol. 2, pp. 25 to 33. Although these, including the ones now before me, appear to have been created in excess of the authority given by the act of April 8, 1864, supra, I am of the opinion that the validity of their creation cannot now be properly questioned in view of administrative action in dealing with them as reservations for over a quarter of a century, by reason of an implicit recognition thereof by Congress by way of appropriations made for the general administration of the agency having the jurisdiction over these areas, and by congressional appropriations made to the Office of Indian Affairs in connection with the irrigations of lands therein. See acts of June 30. 1919 and March 3, 1921 (41 Stat. 3 and 1226), and the act of June 24, 1923 (42 Stat. 1181), appropriating money for the irrigation of the so-called Owens Valley projects, which include these lands.

    Having disposed of the question concerning the validity of the Executive orders, I consider whether these lands are tribal lands and, if so, who must consent to the exchange thereof.

    Tribal lands are ordinarily defined as lands be longing to the tribe as a community, rather than to the members severally or as tenants in common. Sizemore v. Brady, 235 U.S. 441. This definition presupposes the evidence of a tribe or band having the usual characteristics of tribes or bands, such as independence of action, continuity of existence, a common leadership, and a concert of action, as defined in the case of Montoya v.United States, 180 U.S. 261. But were this definition to control in the present case, the conclusion may possibly be reached that there was no group, band, or tribe that so held the property. It is my opinion, however, that the act in question does not have this definition in mind in using the term "tribal property."

    The act first authorizes the conveyance of lands "held for the benefit of Indians." Sec. 2 of the act authorizes the exchange of allotted lands in a certain manner. Sec. 3 of the act provides as follows:

    "No tribal lands shall be involved in any such exchange except with the consent of a majority of the adult Indians entitled to the use thereof. All lands acquired pursuant to this Act, other than land to which title may be held by or in trust for individual Indians, shall be held by the United States in trust for the Indian tribe, band, or group concerned."
It will be noted that the act deals specifically with two kinds of land, allotted lands and tribal lands. Moreover, it is provided that titles to lands to be acquired shall be taken in but two ways: for the individual, or for the tribe, band, or group concerned. This last provision seems to be on the assumption that, within the meaning of the act, a tribe, band, or group is concerned with all of the land involved in the exchange, other than individual allotments. If there were land of a third kind which properly could be said to be held for the benefit of Indians but in which no individual or no group, band, or tribe were concerned, there would then be no group concerned with the title to be taken by the United States. This is contrary to the basic assumption of the last sentence of Sec. 3.

    That there was in the contemplation of Congress no such third class of land as above suggested is borne out by the committee reports on the bill. H.R. 5299, House Rep. 365, Senate Rep. 278. These reports incorporate the departmental recommendation on the bill, the latter containing this significant language:

    "However, we wish to point out here that the proposed draft of bill would authorize an exchange only in the discretion of the Secretary of the Interior, and that the consent of a majority of the Indians involved also would have to be obtained. Therefore, no exchange would be consummated unless it were clearly


763

OPINIONS OF THE SOLICITOR

JUNE 9, 1937

apparent that the Government would receive full value for any lands conveyed to the city of Los Angeles, and the Indians themselves approved the transaction."

Very evidently this Department, and the House and Senate Committees, were of the opinion that no land was to be exchanged except with the approval of the interested Indians, either individually as in the case of allotments, or by groups where unallotted. I conclude that all unallotted land held for the benefit of the Indians is tribal property within the meaning of the act. And I am of the opinion that the remaining unallotted land is all held for the benefit of the Indians. As to the land reserved by the Executive order dated March 11, 1912, there is little doubt. This was permanently withdrawn "for allotment purposes to the Indians located thereon and for such other uses as may be lawful for the benefit of the Indians." As to the lands purchased for homeless Indians, the authority to purchase directs that the lands shall be "for the use and occupancy of said (homeless Indians in California) Indians." Act of August 1, 1914 (38 Stat. 589). As to the land withdrawn by the order of September 7, 1912, some question exists because the lands were withdrawn temporarily until suitableness for "allotment purposes to homeless Paiute or other Indians living on or adjacent thereto" could be determined. I have been advised informally by the Indian Office, however, that the lands have since been used and occupied by the Indians and have been administered by the Indian Office continuously since the withdrawal, and so long as the withdrawal remains unrevoked, it is my opinion that the lands are properly lands held for the benefit of the Indians within the meaning of the act being considered. Compare Solicitor's opinion of March 24, 1932, M. 26934, holding with respect to a similar withdrawal that where there had been no use made of the lands the withdrawal could not be considered as creating a reservation in the generally accepted sense of the term, and that it was subject to revocation by an Executive order.

    Turning to the final question concerning what Indians must consent to exchanges of tribal land, it is my opinion that the act does not require the approval of the exchanges by the tribe or bands of Indians in Owens Valley as a whole, assuming that a tribe or bands in the generally accepted sense exist. Rather, the intent of the act seems to be that the approval shall be given by the majority of the adult Indians located on or entitled to the use of the tracts involved in the exchange. Therefore, exchanges of unallotted land may be effected on securing the approval of the majority of the adult Indians who have properly been located on or assigned to the use of the particular tract to be exchanged.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.
Approved: June 2, 1937.

OSCAR L. CHAPMAN, Assistant Secretary.

CATAWBA TRIBE

June 9, 1937.
Memorandum to the Commissioner of Indian Affairs:

    In the departmental report on HR. 5938 it is recommended that all after the enacting clause of the bill be stricken out and that substitute provisions be inserted. It is believed that the substitute provisions should be drafted in such a way as to be as useful as possible to the Department if the bill is enacted. I, therefore, suggest three insertions which may save the Department difficulty in the future.

    1. It is suggested that the name "Catawba Indians of South Carolina" be changed to "Catawba Tribe of Indians of South Carolina," in order that there may be no doubt as to their tribal status. The report to the Commissioner on these Indians indicates that they are historically and in fact a tribe and Congressional recognition of their tribal status will make unnecessary any subsequent determination of this point in the Department. Congressional recognition of tribal status is conclusive. United States v. Sandoval, 231 U.S. 28.

    2. In section 2 the words "and to declare such lands an Indian reservation" should be inserted after the first semicolon. This insertion would remove any doubt as to whether the lands acquired for these Indians are an Indian reservation. This is important as acts of Congress frequently deal with Indian questions in terms of Indian reservations. It is not at ail clear whether lands previously in private or State ownership acquired by the United States for the use of Indians automatically become an Indian reservation. In the case of United States v. One Chevrolet Automobile, 16 F. Supp, 453 (D.C. Nevada, 1936), it was held that such lands of the Reno Indian Colony Site were not a reservation. The proposed insertion follows the Reorganization Act which empowers the Secretary to declare lands acquired under it an Indian reservation. The fact that the Catawba lands constitute a reservation will not interfere with the retention of civil and
 



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DEPARTMENT OF THE INTERIOR

JUNE 9, 1937

criminal jurisdiction over the lands by the State, as provided in the bill. One instance of such a situation is the Sac and Fox Reservation in Iowa over which the State retained criminal jurisdiction.

    3. In the original bill it is provided that the lands acquired by the United States for these Indians shall be non-taxable. This is not included in the substitute draft. If the United States purchases the land there will, of course, be no question of State taxation. However, if the State transfers ownership of the land to the United States, it might do so only on condition that it retain the privilege of taxation. This is what occurred in connection with the Sac and Fox Reservation in Iowa. According to the terms of the substitute draft it would appear that the Secretary of the Interior would be authorized to accept a conveyance, even though conditional. To guard against the possibility of State taxation a sentence could be added at the end of section 2 reading as follows: "Any lands acquired pursuant to this section shall be free from State or local taxation until otherwise provided by Congress."
 

Acting Solicitor.
UMATILLA--HUNTING AND FISHING
June 25, 1937.
Memorandum to the Commissioner of Indian Affairs:

    In a letter to you dated April 19 the Superintendent of the Umatilla Indian Agency reports that the filling of the lake above Bonneville Dam now under construction by the Federal Government will drown out many of the "usual and accustomed fishing places" of the Indians who made their living by fishing along the Columbia River. He requests that an investigator be detailed to examine the fishing activities of the Indians along that river in order to ascertain the number and value of the fishing places which will be destroyed and to gather data relative to the application of the "usual and accustomed fishing places" to new fishing places at a higher elevation along the river. He states that this information should be gathered immediately as this is the last fishing season prior to the filling; of the lake and as it will be impossible to gather information after the lake is filled. The questions arising from this letter as to the rights of the Indians and their practical enforcement were informally referred to Mr. Cohen in this office and in his absence are being answered through this office.

    This letter presents two distinct problems: first, as to the right of the Indians to compensation for the destruction of their fishing places and, second, as to the possibility of transferring their special privileges in the existing fishing places to other possible fishing places. In solving the first problem it is necessary to determine whether the Indians have property rights protected by the Fifth Amendment of the United States Constitution which provides that private property shall not be taken for public use without just compensation. In order to come within the terms of the Fifth Amendment the Indians must show, first, that they have a property right, second, that this property right is being "taken" and, third, that the taking is one which under the law is entitled to compensation. I will deal with these three requisites in order.

    The Indians of the Umatilla Reservation base their fishing rights upon the treaty of June 9, 1855 (12 Stat. 945), by which they ceded a large portion of their land to the United States reserving a diminished reservation and certain fishing privileges. The reservation of fishing privileges reads as follows:

"Provided also that the exclusive right of taking fish in the streams running through and bordering said reservation is hereby secured to said Indians, and at all usual and accustomed stations in common with citizens of the States, and of erecting suitable buildings for curing the same;"
    The reservation of a right to fish outside the reservation at all usual and accustomed places in common with citizens of the United States is a provision which was inserted in a number of treaties with Indians of the northwest. Of these Indians, it is probable that the Indians of the Yakima and Fort Lapwai Reservations will be affected by the Bonneville Dam in the same way as the Umatilla Indians. The statements made, therefore, regarding the Umatilla Indians will apply as well to the Indians of the other reservations affected.

    This common treaty provision has been interpreted by the Supreme Court in several cases. In the case of United States v. Winana, 198 U.S. 371, the Court upheld an injunction against the defendants who had erected a device under license from the State which in effect monopolized the fishing at one of the usual and accustomed fishing places of the Yakima Indians. The Court stated that the Indians had greater rights than those of the rest of the public and that these rights constituted an easement on the land for the purpose of access to the river and a secured right of fishing which continued against the United States and its
 



765

OPINIONS OF THE SOLICITOR

JUNE 15, 1937

grantees and the State and its grantees. The Court described the fishing privilege both as a reservation by the Indians of their pre-existing right and as a grant by the United States of rights upon navigable streams within its power of disposition over navigable streams within a Territory. Because of the importance of the description of the right of the Indians given in this case in connection with the present problem, I am quoting at length from the relevant parts of the Court's decision:

    "The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed. New conditions came into existence, to which those rights had to be accommodated. Only a limitation of them, however, was necessary and intended, not a taking away. In other words, the treaty was not a grant of rights to the Indians, but a grant of right from them,-a reservation of those not granted. * * * Reservations were not of particular parcels of land, and could not be expressed in deeds, as dealings between private individuals. * * * They imposed a servitude upon every piece of land as though described therein. There was an exclusive right of fishing reserved within certain boundaries. There was a right outside of those boundaries reserved 'in common with citizens of the territory.' As a mere right, it was not exclusive in the Indians. Citizens might share it, but the Indians were secured in its enjoyment by a special provision of means for its exercise. They were given 'the right of taking fish at all usual and accustomed places,' and the right 'of erecting temporary buildings for curing them.' The contingency of the future ownership of the lands, therefore, was foreseen and provided for; in other words, the Indians were given a right in the land,-the right of crossing it to the river,-the right to occupy it to the extent and for the purpose mentioned. No other conclusion would give effect to the treaty. And the right was intended to be continuing against the United States and its grantees as well as against the state and its grantees.

        *                                *                                *                                *                                *

    "It is further contended that the rights conferred upon the Indians are subordinate to the powers acquired by the state upon its admission into the Union. * * * The United States, therefore, it is contended, could neither grant nor retain rights in the shore or to the lands under water.

    "The elements of this contention and the answer to it are expressed in Shivelyv.Bowlby, 152 U.S. 1 * * *. It was said by the court, through Mr. Justice Gray:

    " 'We cannot doubt, therefore, that Congress has the power to make grants of lands below high-water mark of navigable waters in any territory of the United States, whenever it becomes necessary to do so in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several states, or to carry out other public purposes appropriate to the objects for which the United States holds the territory.'

    "The extinguishment of the Indian title, opening the land for settlement, and preparing the way for future states, were appropriate to the objects for which the United States held the territory. And surely it was within the competency of the nation to secure to the Indians such a remnant of the great rights they possessed as 'taking fish at all usual and accustomed places.' Nor does it restrain the state unreasonably, if at all, in the regulation of the right. It only fixes in the land such easements as enable the right to be exercised." (198 U.S. at 381-384.)

    In the case of Kennedy v. Becher, 241 U.S. 556, this treaty provision was interpreted in much the same manner for it was again stated that the Indians had a property right in the nature of an easement for access and fishing. In the later case of Seufert Brothers Co. v. United States, 249 U.S. 194, the defendant company was enjoined from interfering with the fishing by the Yakima Indians in one of their usual and accustomed fishing places, even though this place was outside of the area of land which the Yakima Indians had ceded to the United States. The Indians' right was said to impose a servitude upon the land. In summarizing the right of the Indians as it appears from these cases, it may be said that the Indians have a proprietary right in fishing at these places, which right continues against the United States and may be considered as based upon either a reservation of the original rights of the Indians or upon a grant from the United States in the treaty.

    The further question is whether the property right of the Indians is being "taken" by the construction of the Bonneville Dam. In order to constitute a taking the property must be appropriated or destroyed as a direct result of the public use. If the loss occurs as a remote consequence, it is not
 



 

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DEPARTMENT OF THE INTERIOR

JUNE 15, 1937

treated as a taking of private property by the Government. So if land is eventually inundated by natural causes set in motion by a Government-built levee, the loss is not treated as a taking and therefore is not entitled to compensation. Bedford v. United States, 192 U.S. 217. In this connection may be discussed the Blackfeet case, 81 Ct. Cl. 101, not an eminent domain case but suggested as an obstacle to recovery by the Indians. There the plaintiff tribes sought compensation for the loss of game in their common hunting grounds set aside by treaty. The court held that the game was lost through the operation of natural causes over which the Government had no control. In that case the civilization of the surrounding areas resulted in the destruction of the game which otherwise might have entered the Indian hunting grounds. The situation is entirely different in fact and in legal effect from the instant problem where the Government itself is undertaking a project which directly destroys the game of the Indians. The right of fishing and the right of access to fishing grounds have been treated by the courts as property capable of being taken by eminent domain. Holyoke Water Power Co. v. Lyman, 15 Wall. 500; Boston & Me. R. R. v. Montgomery, 119 Mass. 114. In the Lyman case the destruction of fishing rights as a direct result of the building of a dam was treated as a taking of private rights for public purposes. The destruction of the Indian fishing places due to the filing of the lake is obviously a direct result of the building of the Bonneville Dam and, in my opinion, constitutes a taking of these fishing rights for public uses, within the meaning of the Constitution.

    As a general rule of law, however, when private rights in the bed or waters of a navigable stream are appropriated or destroyed as a result of action by the United States in aid of navigation the courts refuse to award compensation. The theory is that all private rights in a navigable stream are subservient to the power of Congress over interstate commerce which comprehends the power to improve the navigability of navigable streams by any suitable means. Thus, in the case of Lewis Bluepoint Oyster Cultivation Co. v. Briggs, 229 U.S. 82, the plaintiff was held not entitled to compensation for the destruction of his oyster beds under a navigable stream through the operation of the United States in dredging the submerged land for the purpose of deepening the stream. This rule has likewise been applied to the destruction of a private right of access to navigable streams. Scranton v. Wheeler, 179 U.S. 141. Nichols on Eminent Domain, 2d edition, page 428. It has been applied to the taking of all types of private property and privileges in a navigable stream, such as private structures built on the submerged land, even less intimately connected with fishing or access. United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53.

    In view of this established rule and the fact that the Bonneville Dam is being erected in aid of navigation, the Indians have no possibility of obtaining compensation for the destruction of their fishing rights unless these fishing rights can be shown to be on a different plane from other private property rights. The cases intimate one exception to the rule discussed. That exception is based upon the doctrine of estoppel. It is said that if a State has granted rights in its navigable streams which are inconsistent with the development of navigation such rights can be destroyed by the State only with the payment of compensation. Nichols on Eminent Domain, pages 423-459. This doctrine has not yet been clearly applied in the case of a grant by the United States, probably chiefly for the reason that grants by the United States in navigable streams are almost unknown. Shively v. Bowlby, 152 U.S. 1. However, in the case of Monongahelia Navigation Co. v. United States, 148 U.S. 312, compensation was required for the destruction of the value of the company's locks and dams by the United States acting in aid of navigation because of the fact that the United States had "invited" the company to erect these improvements. In discussing this case in the Bluepoint Oyster case, supra, the court treated the decision as an example of the application of the doctrine of estoppel to the United States. Also in the Chandler-Dunbarcase, supra, the court expressly excepted from its statement of the rule of no compensation a situation involving the "element of contract."

    A fairly strong argument can be made that the Indians come within this doctrine of estoppel since their privilege of fishing has been recognized as a grant from the United States in both the Winana and Seufert cases. The fact that the United States can grant fishing privileges in territorial waters to Indians is expressly upheld in the Alaska Pacific Fisheries case, 248 U.S. 78, and such a reservation will, of course, limit the exercise of conflicting powers of Congress. See Solicitor's Opinion M.28978, April 19, 1937. page 10. Moreover, the fishing rights here are not merely a gratuitous grant but the subject of a contract between the United States and the Indians in which the fishing rights were part of the consideration for the conveyance to the United States of the Indians' right of occupancy in a large area of land. This then is further reason why the United States should be estopped from destroying the substance of the consideration without compensation.

    If the fishing rights are regarded as a reservation of part of the original right of occupancy of the Indians rather than as a grant from the United
 



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OPINIONS OF THE SOLICITOR

JUNE 30, 1937

States, the case for the Indians would seem to be equally strong since the ownership of the territory by the United States was subject to the right of occupancy in the Indians. It should be noted that the United States agreed with the Warm Springs Indians by treaty of November 15, 1865 (14 Stat. 751), to pay them $3,500 for the relinquishment of the same fishing privileges as are the subject of this memorandum. Wherever the right of occupancy of the Indians is destroyed by the United States without compensation the Indians have been recognized as having a just claim against the United States.

    From the foregoing I conclude that the Indians have a possible claim for compensation for the destruction of their fishing places by the Bonneville Dam. While the claim is not certain because of the fact that the action by the United States is taken in aid of navigation, there is, however, in my opinion, sufficient reasonable ground for a claim as to make it imperative to protect the interests of the Indians in all possible ways. Since the dam is being erected under Title II of the National Industrial Recovery Act of June 16, 1933 (48 Stat. 200), which gives authority to the Public Works Administrator to exercise the right of eminent domain, it may be possible to negotiate a settlement with the Public Works Administration which is financing the project and the War Department which is building the project. In any event, an investigation is proper to determine the losses which the Indians will sustain. This investigation should likewise determine what tribes are interested in the fishing places which will be destroyed by the dam and to what extent. As the fishing privileges belong to all the members of the tribes and not exclusively to the individual Indians who may happen to have taken advantage of these privileges (cf. Mason v. Sums, 5 F. (2d) 255, D.C. Wash. 1925), any compensation obtained for their loss would be for the benefit of the tribes involved.

    There is no possibility of transferring by any action of the Federal Government the special fishing privileges of the Indians from the existing places covered by treaty to new areas. These privileges, as demonstrated by the cases discussed, are privileges resulting from the historic right of occupancy of the Indians and the treaties made with the Indians while the land was still in territorial status. At the present time the only authorities competent to grant fishing rights in the Columbia River are the States through which the river flows. It is highly unlikely that either the State of Oregon or Washington would be interested in reserving private privileges to the Indians of these reservations. However, the possibilities of the Indians obtaining fish from other places in the Columbia River and thereby carrying on their fishing enterprises should be taken into account by the investigator in determining the amount of any damages sustained from the loss of the existing fishing privileges.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.
RESPONSIBILITY OF AN INDIAN TRIBE
UNDER THE SOCIAL SECURITY ACT

M-29156                                                                                                                              June 30, 1937.

The Honorable,
The Secretary of the Interior.

MY DEAR MR. SECRETARY:

    There has been referred to me for an opinion a question concerning the responsibility under the Social Security Act of an Indian tribe which enters into a trust agreement with the Government for the handling of Indian Rehabilitation funds. This question as presented by the Indian Office is as follows:

    "If expenditures of Rehabilitation funds are to be handled by the Tribal Council or officers thereof, what responsibility, if any, attaches to the Tribe insofar as compliance with the Unemployment Insurance and Social Security laws are concerned?"
    It is believed that the question has reference to the responsibility of the tribes for the payment of taxes laid by the Social Security Act upon employers in connection with the Federal old-age benefit system and the Federal unemployment insurance plan. Section 804 of Title VIII of the Social Security Act of August 14, 1935 (49 Stat. 620). provides that every employer shall pay an excise tax with respect to having individuals in his employ of a certain percentage of the wages paid by him with respect to employment after December 31, 1936. In section 811 (b), the term "employment" is defined as meaning "any service, of whatever nature, performed within the United States by an employee for his employer, except- . . . (6) service performed in the employ of the United States Government or of an instrumentality of the United States." Section 901 of Title IX of the Social Security Act provides that on and after January 1, 1936, every employer shall pay for each calendar year an excise tax with respect to having individuals in his employ equal to a certain percentage of the total wages paid by him with respect to employment. In section 907 (a), the term "employer" as used in section 901 is defined as excluding any person who
 



768

DEPARTMENT OF THE INTERIOR

JUNE 30, 1937

does not employ eight or more individuals on each of some 20 days during the taxable year. Here again the definition of "employment", section 907 (5) , excludes "service performed in the employ of the United States Government or of an instrumentality of the United States". In Title XI the term "person" as used throughout the Act is so defined as to include a corporation and the term "corporation" is so defined as to include associations. This definition covers Indian tribes, either as corporations or associations.

    Under the Indian Rehabilitation program it is contemplated that in so far as practicable the amount of Rehabilitation funds allocated to a particular agency, excepting so much of the allocation as covers administrative and supervisory costs of the Rehabilitation projects, will be conveyed by the Commissioner of Indian Affairs to the tribe, whether organized or unorganized, for which or for whose members the Rehabilitation funds are being spent. This conveyance will take the form of a trust agreement providing that the funds conveyed shall be used only for the Rehabilitation projects approved by the Commissioner and under the direction and supervision of the superintendent and the Indian Office. The purpose of this trust agreement is to provide a method by which the income and proceeds from the use of Rehabilitation projects and from the payments made by members of the tribe upon the projects created for their benefit shall be available for continuation of the Rehabilitation program on the reservation.

    Assuming for the purpose of this opinion that after these trust agreements have been executed the tribe can be considered as the employer of the labor used upon the Rehabilitation projects in spite of the fact that the employment and supervision of labor may continue in the superintendent under regulations of the Indian Office as before the execution of the trust agreement, the question then is whether the tribe, as an employer, is subject to the taxes laid in Title VIII and IX of the Social Security Act above described. It is my opinion that the Indian tribes, even if employers, are not subject to either tax for two reasons; first, that it is highly doubtful whether a general tax law of this kind would be held to apply to an Indian tribe unless the statute so indicated, and secondly, and principally. because an Indian tribe, particularly when operating under a trust agreement, can be considered an instrumentality of the United States and, therefore, that employment by a tribe is within the exceptions to the kind of employment upon which taxes are laid.

    While the income of an individual Indian has recently been held subject to a general Federal income tax law, Superintendent of Five Civilized Tribes v. Commissioner of Internal Revenue, 295 U.S. 418, reversing previous opinion, it is improbable that the principle that general laws of Congress should not be so construed as to apply to Indians if such application would adversely affect them (McCandless v. United States), 25 F, (2d) 71, (C.C.A. 3d, 1928); see Heiner v. Colonial Trust Company, 275 U.S. 232 at 234), would be further modified to extend general tax laws to the funds of Indian tribes, which have always been closely supervised and guarded by Congress. One practical reason stands in the way of such construction since tribal funds, where they exist, arc almost universally held in the Treasury of the United States and cannot be expended without specific appropriation by Congress. (Sec. 27, act of May 18, 1916, 39 Stat. 159.) No General authorization for the payment of taxes from tribal funds, except to meet an individual's taxes from his share of the funds (March 1, 1907, 34 Stat. 1016) has ever been made.

    This situation is particularly evident in the case at hand. The Rehabilitation funds conveyed to the Indian tribe cover only the exact amount required for the construction and development of the Rehabilitation projects, and do not allow for the payment of any sort of taxes. In order to meet the tax, therefore, resort would have to be had to Congressional appropriation of the funds of the tribe, if any, in the Treasury of the United States. The impropriety of extending by construction a general tax law to an Indian tribe is thus apparent.

    This office has frequently taken the position that an Indian tribe is an instrumentality of the United States, particularly in so far as its powers have been limited or expanded by the Federal Government (see Solicitor's Opinion of December 13, 1934, at page 25), and that this character is confirmed in the case of a tribe which receives a charter under the Indian Reorganization Act (Ibid., at page 26). However, even if the tribe could not otherwise be considered as an instrumentality of the United States, the trust agreement entered into between the Government and the tribe would give it that character, since the tribe becomes the means whereby the Government carries on the Rehabilitation activities provided for by Congress and administers to the needs of the tribes and their members.

    I therefore feel free definitely to advise the Indian Office that the Indian tribes handling Rehabilitation funds under trust agreements are not responsible under the Social Security law for the Federal taxes levied upon employers for the purposes of the act. Furthermore, such tribes are not responsible for any taxes for industrial benefits
 



769

OPINIONS OF THE SOLICITOR

JULY 15, 1937

that may be laid by a State in connection with the Social Security program. This follows from the memorandum to the Assistant Secretary from the Solicitor, approved October 22, 1936, holding that the workmens' compensation laws of the various States are not applicable to Indian tribes.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.
Approved: June 30, 1937.
T. A. WALTERS, First Assistant Secretary.

OKLAHOMA LOANS--WHITE SPOUSE

July 14, 1937.
Memorandum for the Commissioner of Indian Affairs:

    I am returning herewith two loan agreements made to individual Indians under the terms of the Oklahoma Indian Welfare Act of June 26, 1936. Each of these agreements was executed originally by an Indian. In one case (Clara Acosta) it is now proposed by the Indian Office that the application be signed by the husband of the Indian applicant. In the other case (Howling Buffalo) the wife of the original applicant has already signed the application. In neither case does it appear that the spouse of the original applicant is an Indian. It is my opinion that section 6 of the Oklahoma Act authorizing the Secretary "to make loans to individual Indians" does not authorize a joint loan to two persons, one of whom is not an Indian. Therefore, if in either of the cases submitted the spouse of the original applicant is an Indian this fact should appear appear in the application. Otherwise the addition of the second name renders the agreement unauthorized.

    Aside from this question of substantive law it seems to me a bad practice to provide for adding to the loan agreement the name of a new party when the agreement itself specifically refers, in the various factual statements which it contains, to the original applicant and is cast throughout in the first person singular.

    There would be no objection to having the spouse of the applicant endorse notes or provide security. This should accomplish the purpose which was intended to be served by making the spouse a co-applicant.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.

SOIL CONSERVATION BENEFITS--EQUAL
TREATMENT FOR INDIANS--AGRICULTURE
DEPARTMENT POLICY


July 15, 1937.


 Memorandum for the Acting Commissioner of Indian Affairs:

    Some time ago at the request of Commissioner Collier Mr. Cohen was assigned the task of attempting to secure equal treatment for Indians in the distribution of soil conservation benefits under the AAA. Mr. Cohen argued the matter informally in the Office of the Solicitor of the Department of Agriculture and on February 17 a ruling was issued by Solicitor Mastin G. White reversing the prior position of the Department of Agriculture and granting equal rights to Indians both with respect to allotted lands held by individuals and with respect to tribal lands held by organized or unorganized tribes. This ruling, of course, is not self-enforcing and benefits are not paid out except where applications are made.

    On March 5 Secretary Ickes formally requested a copy of the new ruling for distribution to Indian tribes and Indian Service officials affected thereby. This opinion was supplied by Secretary Wallace on March 17.

    Although the Secretary's letter of March 5 had been prepared in this office (as noted in my memorandum to the Commissioner dated March 5) the answer of Secretary Wallace was not brought to the attention of this office until July 13. With this answer there was brought to my attention by the Mails and Files Division a file of later correspondence, which indicates:

    1. That the ruling of February 17 has not yet been sent to officials of Indian tribes concerned or to Indian Service employees generally and that in all probability no applications for 1937 benefits under the new ruling have been made by any Indian tribes or individual Indians.

    2. That as late as May 13 you yourself had not been informed of the new ruling, and stated, in response to a Senatorial inquiry, that the question of the eligibility of Indian lands to benefits under the AAA had not yet been determined by the Department of Agriculture.

    3. That prior to March 23 your Forestry Division interpreted Solicitor White's ruling as excluding from soil conservation benefits all Indian lands under permit, that Chief Counsel Reeves disagreed and advised that under the ruling the Indians, though not the permittees, might be entitled to soil conservation benefits, but that notwithstanding this legal advice your Extension and For-
 



770

DEPARTMENT OF THE INTERIOR

JULY 15, 1937

estry Divisions have continued to construe Solicitor White's ruling as denying benefits both to permitter and to permittee and have so advised Superintendent Roberts of the Pine Ridge Reservation.

    4. That subsequently Indian Service employees in South Dakota and in Washington have endeavored to secure a modification of Solicitor White's ruling, the effect of which would be to deprive Indians of any right they may have to receive benefits for the improvement of lands under permit and to grant such rights to the permittees exclusively.

    While the information before me is not complete, it seems that the facts are such that you might determine that on each of these points the action taken in your office has been ill-advised.

    On the first point, it seems that the Secretary's endeavor to acquaint the Indian tribes and field service with an important ruling in support of Indian rights should be carried into effect without delay. This is particularly important since without knowledge of the ruling individual Indians and Indian tribes have lost and are losing a substantial income. Whatever questions may have arisen as to the rights of permittees versus the rights of Indian owners, there is certainly no room for question under Solicitor White's ruling that Indian lands used by Indians are eligible for benefits payable to the individual Indians or the tribes concerned and that lands under lease are eligible for benefits payable to the lessee.

    On the second point, I suggest that it would be desirable to fix responsibility for the preparation of a misleading letter and to take appropriate steps to prevent the issuance of further misstatements on the matter in question.

    With respect to the third point above noted, I feel that the action whereby your Extension and Forestry Divisions undertook to disregard the legal advice of your Legal Division and to place unchecked legal constructions on a legal ruling cannot be justified.

    On the final point, I wish to say that it seems to me entirely improper for field employees of the Indian Service or for division heads here in Washington to undertake, apparently on their own responsibility, to secure a modification of a ruling by the Department of Agriculture. This seems peculiarly unfortunate when the ruling in question is in favor of the Indians and the proposed modification would not favor the Indians. But regardless of the merits of the particular question, it seems that legal matters of this sort should be handled by this office and by the Department rather than by the heads of the Extension and Forestry Divisions or the local superintendents.

    I realize that the matters presented in this memorandum are to a considerable extent matters of policy and administration. Inasmuch, however, as this office was brought into contact with this problem by Commissioner Collier and inasmuch as it does not appear that the present situation has been brought to your attention, I am undertaking to submit this memorandum so that you may have opportunity to give personal attention to the questions which are raised. Since you have not heretofore had that opportunity it does not seem appropriate to present the matter at this time for the consideration of the administrative officials of the Department.

    Attached hereto are copies of Solicitor White's ruling and the covering letter from Secretary Wallace. The file containing the originals and the supplementary correspondence to which reference is made above has been returned by me to the Mails and Files Division.

    Please advise me of your conclusions on the various questions raised.

                                                                                                                                            FREDERIC L. KIRGIS,

Acting Solicitor.

PROPOSED REVISION OF REGULATIONS FOR
GOVERNMENT CERTIFICATION OF GENUINENESS
OF NAVAJO ALL-WOOL FABRICS--DISCUSSION


July 16, 1937.


 Memorandum for the General Manager of the Indian Arts and Crafts Board:

    I am transmitting herewith for your examination a proposed revision of the "Regulations for use of Government certificate of genuineness for Navajo all-wool fabrics," submitted to this office under cover of June 29, together with a proposed draft of a license appropriate to the purposes that you have suggested.

    The proposed regulations and license form depart from the tentative draft of regulations submitted by you in a number of particulars, the most important being:

    1. Instead of selling seals and certificates to the trader, provision has been made for licensing the use of such materials while title is retained by the Board. This will facilitate control of the materials and seizure of such materials in the event of improper use.

    2. Appropriate provisions have been included for liquidated damages in the event of failure to return such materials at the proper time.
 
 



771

OPINIONS OF THE SOLICITOR

JULY 16, 1937

    3. Provision has been made for suspension or revocation of the license for cause.

    4. Standards of quality have been revised to include the requirement that the product in question shall be made by a member of the Navajo Tribe working independently.

    I believe that these modifications will carry out the purposes you have in mind. I shall be glad, of course, to consider any substitute proposals or further questions you may care to submit.

    I am returning herewith the proposed form of a dealer's bond, submitted under cover of July 6. The form appears to me generally acceptable but I should recommend elimination of the last sentence on the first page. Retention of this provision is likely to involve the Board in unnecessary complications in requiring substitution of sureties during the existence of the license. If, however, you decide to retain this clause it will be possible to modify the proposed license by inserting an agreement on the part of the licensee to provide an acceptable substitute surety bond in the event that the original bond is withdrawn.

                                                                                                                                        FREDERIC L. KIRGIS,

Acting Solicitor.

 
REGULATIONS FOR USE OF GOVERNMENT
CERTIFICATE OF GENUINENESS FOR NAVAJO
ALL-WOOL WOVEN FABRICS

    The following regulations governing the use of Government trade marks of genuineness and quality for Indian products are promulgated pursuant to sections 2 and 3 of the act of August 27, 1935 (49 Stat. 891; U.S.C., title 25, sets. 305a, 305b).

    The use of Government trade marks in an unauthorized manner, or the colorable imitation of such marks, is subject to the criminal penalties imposed by section 5 of the said act, which provides:

    "Any person who shall counterfeit or colorably imitate any Government trade mark used or devised by the Board as provided in section 305a of this chapter, or shall, except as authorized by the Board, affix any such Government trade mark, or shall knowingly, willfully, and corruptly affix any reproduction, counterfeit, copy, or colorable imitation thereof upon any products, Indian or otherwise, or to any labels, signs, prints, packages, wrappers, or receptacles intended to be used upon or in connection with the sale of such products, or any person who shall knowingly make any false statement for the purpose of obtaining the use of any such Government trade mark, shall be guilty of a misdemeanor, and upon conviction thereof shall be enjoined from further carrying on the act or acts complained of and shall be subject to a fine not exceeding $2,000, or imprisonment not exceeding six months, or both such fine and imprisonment." (U.S. Code, title 25, sec. 305d.)
    1. Government certificates of genuineness for Navajo all-wool woven fabrics may be affixed to fabrics meeting the conditions specified in section 3 of these regulations by persons duly authorized to affix such certificates, under license issued by the Indian Arts and Crafts Board;

    2. A license may be granted to any person desiring to use the Government certificate of genuine ness for Navajo all-wool woven fabrics who shall make application therefor and shall execute a contract acceptable to the Indian Arts and Crafts Board providing for the use of such certificates in conformity with these regulations, which contract shall be accompanied by an indemnity bond acceptable to the Indian Arts and Crafts Board, in the amount of $500, conditioned upon faithful performance of such contract;

    3. No fabric may carry the Government certificate of genuineness for Navajo all-wool woven fabrics unless all of the following conditions are met:

    (a) The fabric is made entirely of local wool that is locally spun and is entirely woven on a native Navajo loom;

    (b) The fabric is made by a member of the Navajo Tribe working independently and not under conditions resembling a workshop or factory system;

    (c) The size and weight of the fabric are indicated in the certificate;

    (d) The licensee dates and signs the certificate;

    4. Each licensee will be furnished, upon payment of the license fee hereinafter specified, one hand seal press and a reasonable number of blank Government certificates, which shall be used only in accordance with this license, and shall remain at all times the property of the Board:

    5. Each licensee shall pay a license fee which shall be determined on the basis of _ _ _ _ cents for each Government certificate ordered by the licensee from the Board, but which shall in no case be less than $_ _ _ _ _ _ _;
 



772

DEPARTMENT OF THE INTERIOR

JULY 16, 1937

    6. In the event that complaint is made to the Board that any provision of any license or of these regulations has been violated by any licensee, the Board may suspend the license and all authority conferred thereby, in its discretion, for a period of thirty days, by notifying the licensee of such suspension, by mail, by telegraph or in any other manner;

    7. In the event that the Board, after giving a licensee written notice of charges and affording an opportunity to reply to such charges, orally or in writing, is satisfied that any provision of any license or of these regulations has been violated by any licensee, the Board may revoke the license by notifying the licensee of such revocation, by mail, by telegraph or in any other manner; upon notice of such revocation all authority conferred by the license so revoked shall forthwith terminate, but the validity of actions taken while the license was in force shall not be affected:

    8. Any license may be surrendered by the licensee at any time by surrendering to the Board the Government hand seal press and unused certificates of genuineness entrusted to the licensee, accompanied by a copy of the license marked "surrendered" and signed by the licensee. Such surrender shall take effect as of the time that such property and document have been received by the Board;

    9. Each license shall be in effect from the date of execution thereof and until one year thereafter, unless sooner surrendered or cancelled in accordance with the foregoing provisions;

    10. Certificates shall be fastened to the woven fabric by wire caught in a lead seal disc that shall be impressed and made fast with the hand seal press furnished by the Indian Arts and Crafts Board;

    11. When the certificate is first applied, the lower of the two spaces provided for the purpose shall be dated and signed. In the event that the ultimate retailer of any fabric so marked is not the person who originally attached the certificate, that ultimate retailer, if duly licensed under section 2 of these regulations, may date and sign the upper of the two spaces provided for the purpose and may, if he so desires, detach the original date and signature;

    12. Certificates may be attached only to products which are in the ownership or possession of the licensee. Certificates will be consecutively numbered and records of the allocation of such certificates will be maintained by the Indian Arts and Crafts Board. Each licensee will be held responsible for the proper use of such certificates and of the Government hand seal press furnished to such licensee.

    Promulgated by the Indian Arts and Crafts Board on _ _ _ _ _ _ _ _ _ _ _ _ _ _ , 1937.

Approved _ _ _ _ _ _ _ _ _ _ _ _ _ _ , 1937.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ ,
Chairman.
--------------------------------------
Secretary of the Interior.

LICENSE FOR USE OF GOVERNMENT CERTIFICATE
OF GENUINENESS FOR NAVAJO ALL-WOOL
WOVEN FABRICS
--------

    THIS AGREEMENT made the _ _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ _ _ _ , 19 _ _, between the Indian Arts and Crafts Board, of the United States Department of the Interior, hereinafter referred to as the Board, and _ _ _ _ _ _ _ _ _ _ _ _ _ _  _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ , (Insert name, address, and State of incorporation, if incorporated.)

hereinafter referred to as the licensee:
WITNESSETH:

    1. The licensee is hereby authorized, upon compliance with the terms of this agreement, to attach Government certificates of genuineness to Navajo woven fabrics offered for sale or owned by the licensee;

    2. Government certificates of genuineness may be attached only to fabrics which meet all of the following conditions:

    (a) The fabric is made entirely of local wool that is locally spun and is entirely woven on a native Navajo loom;

    (b) The fabric is made by a member of the Navajo Tribe working independently and not under conditions resembling a workshop or factory system;

    (c) The size and weight of the fabric are indicated in the certificate;

    (d) The licensee dates and signs the certificates;

    3. The licensee will be furnished, upon payment of the license fee hereinafter specified, one hand seal press and a reasonable number of blank Gov-
 



773

OPINIONS OF THE SOLICITOR

JULY 21, 1937

ernment certificates, which shall be used only in accordance with this license, and shall remain at all times the property of the Board;

    4. The licensee shall pay a license fee which shall be determined on the basis of _ _ _ _ _ _ _ _ _ _ _ _ _  cents for each Government certificate ordered by the licensee from the Board, but which shall in no case be less than $_ _ _ _ _ _ _ _ _ _ _ :

    5. In the event that complaint is made to the Board that any provision of this license or of the applicable regulations of the Board has been violated by the licensee, the Board may suspend this license and all authority conferred thereby, in its discretion, for a period of 30 days, by notifying the licensee of such suspension, by mail, by telegraph or in any other manner;

    6. In the event that the Board, after giving the licensee written notice of charges and affording an opportunity to reply to such charges orally or in writing, is satisfied that any provision of this license or of the governing regulations of the Board has been violated by the licensee, the Board may revoke this license by notifying the licensee of such revocation, by mail, by telegraph or in any other manner; upon notice of such revocation all authority conferred by this license shall forthwith terminate, but the validity of actions taken while the license was in force shall not be affected.

    7. This license may be surrendered by the licensee at any time, by surrendering to the Board the Government hand seal press and unused certificates of genuineness entrusted to the licensee, accompanied by a copy of this license marked "surrendered" and signed by the licensee. Such surrender shall take effect as of the time that such property and document have been received by the Board;

    8. This license shall be in effect from the date of execution thereof and until one year thereafter, unless sooner surrendered or cancelled in accordance with the foregoing provisions;

    9. The licensee shall return to the Board, within three days after the suspension, revocation, or expiration of this license, all unused certificates and the Government hand seal press. In view of the difficulty of measuring the damages incurred by the Board in the event of failure to return the same within the prescribed period, and in consideration of the expenses of clerical and investigative work incurred thereby, liquidated damages shall be due and payable to the Board, for failure to make return of such property, amounting to $300, or $10 for each day's delay in making return, whichever sum shall be the lesser.

    10. The licensee has attached to this contract a surety bond covering the use of certificates on Navajo all-wool woven fabrics, guaranteeing performance of the terms of this contract and compliance with governing regulations of the Board.

DATE:
WITNESS:

_ _ _ _ _ _ _ _ _ _ _ _ _ _
(Licensee)

BY_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

DATE:
WITNESS:

INDIAN ARTS AND CRAFTS BOARD,

BY_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
(Chairman)
CREDIT ASSOCIATION CHARTERS UNDER
OKLAHOMA WELFARE ACT--POWERS
July 21, 1937.
Memorandum for the Commissioner of Indian Affairs:

    I am returning herewith for further consideration a proposed charter for the Pawnee Indian Welfare Credit Association. Section 7 of the proposed charter provides that membership in the association shall be open to all Indians within the boundaries of the original Pawnee Reservation and to Pawnee Indians living in proximity to such reservation. This provision is subject to legal objection on two counts. In the first place, it does not prescribe a definite district, as the final sentence in section 4 of the Oklahoma Welfare Act requires. In the second place, it does not provide that membership in the association "shall be open to all Indians residing within the prescribed district," as the law specifically requires. Under the circumstances I do not believe that any special membership privileges can legally be accorded to Pawnee Indians living outside of the district prescribed. It would, of course, be possible to give special membership rights to Pawnee Indians if the organization were on a tribal basis. As framed, however, the organization stands on a purely territorial basis.

    A further question arises with reference to the second of the proposed modifications of the charter as submitted. This modification provides that the business of the association shall be turned over in its entirety to a Pawnee tribal corporation, if that is set up. The credit association, however, will deal with Indians who are not Pawnees. The Pawnee Tribe in taking over such loans would involve itself in relations with nonmembers of the tribe.
 



774

DEPARTMENT OF THE INTERIOR

JULY 21, 1937

This would be a new departure in tribal activities but, if it is in line with Indian Office policy, no legal objection will be raised in this office.

Acting Solicitor.

 
KEETOWAH--ORGANIZATION AS BAND

 
July 29, 1937.

 Memorandum for the Commissioner of Indian Affairs:

    A question has been raised by the Oklahoma Regional Coordinator in charge of organization as to whether the Keetoowah Society of Oklahoma Cherokees can be considered a band for the purposes of organization under the Oklahoma Indian Welfare Act. The Keetoowah Society is an organization of full-blood Indians which originated almost a century ago for the preservation of Indian culture and traditions. A secret society representing the most conservative portion of the Cherokee Indians, it has had several specific objectives, principally opposition to slavery and subsequently, opposition to allotment. Facts concerning its origin, organization and purpose are set forth in a report compiled by Mr. Charles Wisdom, anthropologist. He states that while the name is derived from an ancient Keetoowah town or band of Cherokee Indians in what is now North Carolina, there is no historical connection between the society and the band; there exists only a cultural and mystical relationship with the early group. Due to differences in philosophy the society is now divided into six factions. Most of these factions have a membership extending over various districts and one or two have a strong network of organization over the Cherokee region.

    In my opinion neither the Keetoowah Society nor any of its factions can be considered a band, much less a "recognized band" under section 3 of the Oklahoma Indian Welfare Act.

    The primary distinction between a band and a society is that a band is a political body. In other words, a band has functions and powers of government. It is generally the historic unit of government in those tribes where bands exist. Because of Federal intervention aimed to destroy tribal organization many recognized bands have lost most if not all of their governmental functions. But their identity as a political organization must remain if the group of Indians can be considered a band or tribe.

    This character of a band as an existing or historical unit of Indian government seems to be recognized in sections 16 and 19 of the Indian Reorganization Act which refer to "powers vested in any tribe or tribal council by existing law" and define tribe to include an "organized band". In the administration of the act, organizations of tribes or bands have included such limited powers of government as remain and are considered appropriate. It is this feature which distinguishes organization under section 3 of the Oklahoma Act from organization of voluntary associations under section 4.

    A band must likewise possess a common leadership, concerted action and a well defined membership. It may share these characteristics with a society, but often though not necessarily, the membership of a band is perpetuated primarily by birth, marriage and adoption rather than by affiliation of persons of like opinion. While the language of some of the cases quoted in my memorandum of July 15 on the Creek Tribal Towns describe a band simply as a group having a common leadership and concert of action, the band in each of these cases was shown by the finding of facts to be an independent unit capable of political action, and particularly, the initiation of hostile proceedings.

    The Creek Tribal Towns, in so far as they have retained a recognized existence, were determined to be capable of consideration as bands because they possessed the indispensable political character of such bodies. Not only were they the functioning political subdivisions of the Creek Confederacy or Nation but they were the original independent units of government of the Creek Indians. This essential character is not possessed by the Keetoowah Society nor any of its factions. It is neither historically nor actually a governing unit of the Cherokee Nation, but a society of citizens within the Nation with common beliefs and aspirations.

    While I have come to the conclusion that the Keetoowah Society of Cherokee Indians cannot be considered a band for organization purposes, groups of its members might form a basis for cooperative associations under section 4 of the Oklahoma act. However, this may not satisfy the groups' wishes as any such association could not be limited to members of the society, since associations formed under that section must be open to all Indians residing within the district in which the association is formed. Another solution which might be considered as an administrative matter is the possibility of a society or organized faction or group borrowing as a unit from a tribal, cooperative or credit organization for such group enterprise as it could successfully carry on. I see no legal objection to such an arrangement.

                                                                                                                                        FREDERIC I,. KIRGIS.

Acting Solicitor.
 


 

775

OPINIONS OF THE SOLICITOR

AUGUST 7, 1937

TRIBAL LANDS-PERMITS

August 2, 1937.
Memorandum for the Commissioner of Indian Affairs:

    The attached proposed letter to the Chairman of the San Carlos Tribal Council is returned for further consideration. The letter states that the ordinance in question, which specifies a rental to be paid by traders for the use of tribal land, has been enacted pursuant to Article V, section 3 of the constitution of the tribe, that such an ordinance is subject to review by the Secretary of the Interior, and that having been reviewed no objection is found to the ordinance.

    These statements are not supported by the terms of the tribal constitution. If the ordinance in question was enacted pursuant to Article V, section 3, as stated in the proposed letter, it is not subject to review by the Department since that section does not provide for departmental review.

    The resolution itself does not recite the authority upon which it is based. It might properly be viewed, I think, as authorized by the section cited in the proposed letter. That section states: "The Council shall have the power to prevent the disposition, lease or encumbrance of tribal lands, interests in lands or other tribal assets without the consent of the tribe." The resolution in question provides, in effect, that such consent shall not be given except under the conditions recited. This is a matter on which the Council may act without the approval of any representatives of the Department.

    In accordance with the foregoing, I suggest that the Superintendent should be notified to include the provisions stated in all permits hereafter granted to traders authorizing them to use tribal land and that all revocable permits heretofore granted should be modified by order of the Secretary to require conformity to this resolution.

    It should be further pointed out to the Superintendent that if the Tribal Council itself issues permits to traders for the occupancy of tribal land such permits will be governed by the provisions of section 3 of Article V of the constitution, limiting the area for which a permit may be granted to five acres, limiting the period for which it may extend to three years, and requiring for the issuance of such a permit "an affirmative vote of three-fourths of the members of the Tribal Council."

    The resolution submitted fails to specify what shall be done with the rental in question. It should be pointed out in the letter to the Council that moneys so received may be deposited to the credit of the tribe in a special account available for appropriation by the Council instead of being deposited as "miscellaneous receipts."

                                                                                                                                                FREDERIC L. KIRGIS.

Acting Solicitor.

 
TRIBAL POWER--EXCLUSION OF NON-INDIAN
ATTORNEYS

 
August 7, 1937.

 Memorandum for the Commissioner of Indian Affairs:

    Consideration has been given at your request to the question of what measures may be taken by the authorities of an Indian tribe to control undesirable activities of non-Indian attorneys within an Indian reservation.

    In so far as such attorneys may seek to practice before an Indian court it is relevant to point out that section 8 of the Law and Order Regulations approved by the Secretary of the Interior on November 27, 1935, provides:

    "Professional attorneys shall not appear in any proceeding before the Court of Indian Offenses unless Rules of Court have been adopted as set forth in section 4 of this Chapter prescribing conditions governing their admission and practice before the Court."
    With respect to the more general question of control by tribal authorities over conduct of non-Indian attorneys on the reservation not amounting to practice before an Indian court, the following considerations are pertinent:

    That Indian tribal authorities have power to exclude from tribal land any non-member of the tribe not authorized by the tribe or by the United States to transact business within the reservation is established by repeated decisions of the Federal courts. In the case of Buster v. Wright, 135 Fed. 947. Appeal Dismissed, 203 U.S. 599, the court declared:

    "The authority of the Creek Nation to prescribe the terms upon which noncitizens may transact business within its borders did not have its origin in act of Congress, treaty, or agreement of the United States. It was one of the inherent and essential attributes of its original sovereignty. It was a natural right of that people, indispensable to its autonomy as a distinct tribe or nation, and it must remain an attribute of its government until by the
 

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